1 Cindy A. Cohn, Esq. (SBN 145997) Wendy Seltzer, Esq. 2 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street 3 San Francisco, CA 94110 Telephone: (415) 436-9333 x108 4 Facsimile: (415) 436-9993
5 Alan Korn, Esq. (SBN 167933) LAW OFFICE OF ALAN KORN 6 1840 Woolsey Street Berkeley, CA 94703 7 Telephone: (510) 548-7300 Facsimile: (510) 540-4821 8 Attorneys for Plaintiff 9 ONLINE POLICY GROUP
10 Jennifer Stisa Granick, Esq. (SBN 168423) STANFORD LAW SCHOOL 11 CYBERLAW CLINIC 559 Nathan Abbott Way 12 Stanford, CA 94305-8610 Telephone: (650) 724-0014 13 Facsimile: (650) 723-4426
14 Attorneys for Plaintiffs NELSON CHU PAVLOSKY and LUKE 15 THOMAS SMITH
16 UNITED STATES DISTRICT COURT 17 FOR THE NORTHERN DISTRICT OF CALIFORNIA 18 ONLINE POLICY GROUP, NELSON CHU ) No. C-03-04913 JF PAVLOSKY, and LUKE THOMAS SMITH, ) 19 ) PLAINTIFFS’ SUPPLEMENTAL Plaintiffs, ) MEMORANDUM OF POINTS AND 20 ) AUTHORITIES IN SUPPORT OF v. ) APPLICATION FOR PRELIMINARY 21 ) INJUNCTION DIEBOLD, INCORPORATED, and DIEBOLD ) 22 ELECTION SYSTEMS, INCORPORATED, ) Hearing Date: November 17, 2003 ) Time: 9:00 a.m. 23 Defendants. ) Courtroom: 3 ) 24 )
25 26 27 28
PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 Pursuant to this Court’s Order of November 4, 2003, Plaintiffs Online Policy Group 2 (“OPG”), Nelson Chu Pavlosky, and Luke Thomas Smith submit this supplemental memorandum 3 of points and authorities and two supplemental declarations in support of their motion for 4 Preliminary Injunction to remove the unfounded legal threats that currently restrain them from 5 publishing, linking to or hosting websites that link to or publish speech critical of Defendants’ 6 electronic voting machine product.
7 I. INTRODUCTION 8 This case arises from ongoing effort to squelch speech that embarrasses a large, publicly- 9 traded corporation. Defendants Diebold, Incorporated and Diebold Election Systems, Inc., 10 (collectively “Diebold”) have embarked upon a campaign of sending cease-and-desist letters 11 threatening copyright infringement lawsuits to Internet service providers (“ISPs”) and to their 12 service providers (i.e., “upstream”) if they do not take steps to remove from the web an archive of 13 Diebold employees’ e-mails revealing problems with the company’s electronic voting machine 14 product. Diebold has not filed lawsuits against any of the ISPs, nor has it sent any letters to the 15 alleged direct copyright infringers. Rather, Diebold has threatened the ISPs in order to obtain what
16 it could not get through a lawsuit: mass, expedited removals of critical speech without judicial 17 scrutiny. Diebold’s legal threat letter campaign1 continues to be successful; the two individual 18 plaintiffs here continue to be muzzled by their ISP and the ISP plaintiff OPG continues to demand 19 that its users remove the e-mail archive from their websites out of fear of losing its upstream 20 Internet connection. 21 Contrary to Defendants’ assertions, their cease-and-desist letters are not “petitions to 22 government;” sham threats to private parties are entitled to no special First Amendment protection. 23 Instead, Plaintiffs have demonstrated more than a substantial likelihood that they will prevail in 24 this action. They have demonstrated Diebold’s bad faith in sending the letters, first because 25 publication of the e-mail archives constitutes fair use and second because the claims of tertiary and 26 quaternary liability leveled by Diebold against OPG and its upstream provider Hurricane Electric 27 stray far outside the bounds of legitimate copyright liability. Nor do the counter notification
28 1 Plaintiffs believe that Diebold has sent at least a dozen cease and desist letters to ISPs so far. 1 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 provisions of the Digital Millennium Copyright Act (“DMCA”) alleviate problems caused by 2 Diebold’s actions; Plaintiffs have been silenced at a critical time in the discussion of electronic 3 voting machines, an election. And the counter-notice provisions do not even apply to Plaintiff 4 OPG. Finally, the DMCA did not eliminate the role of the judiciary in granting timely relief to 5 individuals and ISPs who face unfounded copyright claims.
6 II. THE HARM CONTINUES 7 Since the filing of this lawsuit and request for Order to Show Cause on November 4, 2003, 8 OPG has continued to suffer harm from Diebold’s false claims and continues to need immediate 9 relief from this Court. This is because the current effect of the legal threats is to force OPG to 10 censor its clients for fear of losing its own Internet access. For example, on November 4, 2003, 11 OPG learned that another of its users was hosting the e-mail archive. Weekly Supp. Decl., ¶2. 12 Because of Diebold’s cease and desist letter, and the warning from Hurricane Electric that it would 13 consider terminating OPG’s Internet service entirely (turning off over 1,000 websites) if any OPG 14 user hosted the archive, OPG required its user to remove the e-mail archive. Id., ¶3. OPG 15 reasonably expects that it will have to demand that other users to remove the e-mail archive unless
16 protected by this Court. Id., ¶5. 17 The harm to Pavlosky and Smith also continues. Their ISP, Swarthmore College, required 18 them to remove the e-mail archive and even refrain from linking to it over two weeks ago, on 19 October 22, 2003, and has not yet allowed them to republish or link. However, Swarthmore did 20 issue a public statement at the end of the day on October 31, 2003 that it would accept a counter 21 notice from the students and follow the provisions of DMCA §512(g)(3)(C). Smith Supp. Decl., 22 ¶4. Based upon this, Pavlosky and Smith have now issued a counter notice which will come due 23 on or about November 24, 2003. Smith Supp. Decl., Exh. A. Assuming Swarthmore allows the 24 information to be reposted at the end of that period, and that Diebold does not take additional 25 action to prevent republication, Pavlosky and Smith may be able to republish the e-mail archive, 26 but this will be a full week after the hearing on the preliminary injunction and over a month since 27 the e-mail archive and links were removed. 28 2 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 III. ARGUMENT 2 A. Plaintiffs Have a Likelihood of Success on the Merits. 3 1. The Right to Petition Does Not Immunize Defendants From Suit For Sending Cease and Desist Letters. 4 5 Defendants claim that this lawsuit violates their right to petition the government. Diebold’s 6 TRO Opposition at 5:17-6:11. This is plainly wrong. As noted previously, “A letter from one 7 private party to another private party simply does not implicate the right to petition, regardless of 8 what the letter threatens.” Cardtoons, L.C. v. Major League Baseball Players Association, 208 9 F.3d 885, 892 (10th Cir. 2000) (en banc). See also, Allied Tube & Conduit Corp. v. Indian Head, 10 Inc., 486 U.S. 492 (1988)(communications with private organization were not immune from 11 antitrust law based on a claimed right to petition). Defendants did not send their cease-and-desist 12 letters to a government agency or a court – they sent them to three private ISPs, Swarthmore 13 College, Online Policy Group, and Hurricane Electric. Defendants have not sent threats to the 14 alleged direct infringers, but instead put their copyright claims into DMCA notifications to ISPs 15 because that was the fastest route to removal of the archives without judicial or governmental
16 oversight. The letters were intended to, and did, induce the ISPs privately to assess the risks and 17 costs of the threatened lawsuit, balanced against their customers’ and users’ online speech interests. 18 Swarthmore removed its students’ postings of the e-mail archive and forbade them even to link to 19 it; OPG concluded that the risks were worth taking; while its ISP, Hurricane Electric, agreed to 20 maintain a cautious status quo pending this Court’s determination. 21 While the First Amendment protects against government interference with “the right of the 22 people … to petition the Government for a redress of grievances,” an objectively baseless lawsuit 23 instituted to achieve unlawful purposes rather than in good faith to vindicate a legal right can 24 subject the party to litigation. See Professional Real Estate Investors, Inc. v. Columbia Pictures 25 Indus., Inc., 508 U.S. 49, 51 (“Under the sham exception, activity ‘ostensibly directed toward 26 influencing governmental action’ does not qualify for Noerr immunity if it ‘is a mere sham to 27 cover ... an attempt to interfere directly with [] business relationships,’” (quoting Eastern Railroad 28 3 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961))).2 Even processes 2 within litigation incur liability if misused, such as the “‘transparently and egregiously’ overbroad” 3 subpoena by which the defendant was found to have violated the Stored Communications Act in 4 Theofel v. Farey-Jones, 341 F.3d 978, 987 (9th Cir. 2003). Given that Diebold has threatened 5 private parties with an objectively unreasonable suit, this court has wide latitude to conclude that 6 Diebold’s threats are motivated to suppress protected speech and grant relief accordingly. 7 Plaintiffs do not seek to bar Diebold from filing meritorious lawsuits. Plaintiffs seek only 8 to bar Diebold from slinging bad faith threats of baseless lawsuits designed to induce speech 9 intermediaries to silence criticisms of Diebold’s products.
10 B. Diebold’s Legal Threats Are Manifestly Without Merit 11 Defendants barely engage Plaintiffs’ fair use argument, and do not even address how OPG 12 or Hurricane Electric might be liable for infringement. They curiously ignore the fourth and most 13 important fair use factor, the effect on the market for the work. Harper & Row Publishers, Inc. v. 14 Nation Enterprises, 471 U.S. 539, 566 (1985). Yet on all counts, Plaintiffs’ have established a 15 strong likelihood of success on the merits.
16 1. Posting Is Fair Use 17 Defendants address only one of the four fair use factors, criticizing Plaintiffs Smith and 18 Pavlosky for not making a sufficiently “transformative use” by posting the entire e-mail archive. 19 Defendants’ Opposition at 4:13-5:2. On November 6, 2003, the Ninth Circuit confirmed: “Courts 20 have described new works as ‘transformative’ when the works use copyrighted materials for 21 purposes distinct from the purpose of the original material.” Elvis Presley Enter’s v. Passport 22 Video, No. 02-57011 (Nov. 6, 2003) 23
26 2 California has a specific statute addressing such situations. California Code of Civil Procedure §425.16 provides for early dismissal and attorneys fees for lawsuits aimed at private citizens to 27 deter or punish them for exercising their political or legal rights. Wilcox v. Superior Court, 27 Cal. App. 4th 809 (1994). The right to petition government does not provide immunity for those issuing 28 unfounded legal threats or bringing baseless litigation under either state or federal law. 4 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 instances, it is hard to imagine a more distinct purpose from Diebold’s own in creating the archive. 2 Nothing in the fair use doctrine prohibits a finding that use of an entire work is fair. Sony v. 3 Universal City Studios, 464 U.S. 417, 450 (1984). Instead, concerns about the amount of a work 4 taken arise from the presumed loss of revenue to a copyright owner when a complete copy acts as a 5 substitute in the market. Here, there is no “market” for internal e-mails that is displaced by having 6 complete copies available from Plaintiffs’ websites, distinguished from only portions of the e- 7 mails. In light of this, Defendants’ analogies to a “purloined, full-length movie” or “bootleg 8 recording” are absurd. Diebold TRO Opp. at 4. 9 “The purpose of copyright is to create incentives for creative effort…. [A] use that has no 10 demonstrable effect upon the potential market for, or the value of, the copyrighted work need not 11 be prohibited in order to protect the author’s incentive to create. The prohibition of such 12 noncommercial uses would merely inhibit access to ideas without any countervailing benefit.” 13 Sony, 464 U.S. at 450-51. The e-mail archive at issue here was created because Diebold employees 14 and contractors needed to communicate and record their responses to frequent questions in order to 15 perform their jobs. Copyright and its incentive function never entered the picture then, nor should
16 it enter now. 17 Moreover, Defendants themselves contributed to the circumstances where the entirety of 18 the archive is relevant and necessary for the purposes of the criticism. In response to reports about 19 the archive, Diebold officials asserted that the criticisms of it based upon the archive were based on 20 incomplete or out-of-context statements. In a press interview Diebold spokesman Mike Jacobsen 21 reportedly said “that the internal documents were probably deliberately corrupted or changed by 22 anyone who had access to them.” Mr. Jacobsen continued, “The memos are incomplete. . . They 23 [People] saw a memo or two and I think a lot of folks are making claims based on one or two 24 memos and its probably part of a long conversation e-mailed back and forth between Diebold 25 folks.’” Seltzer Decl., Exh. G. Thus, even were it not initially necessary for Diebold’s critics to 26 copy the entire archive, such copying became necessary in order to respond to Diebold’s claims by 27 assuring readers that the information was complete and allowing them to view the full context of 28 the relevant discussions. 5 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 2. Copyright Law Does Not Provide for Tertiary Liability for ISPs Hosting or Colocating Websites that Link to Infringing Works. 2 3 Defendants’ cease-and-desist letter to OPG asserted that the ISP might be liable for 4 “hosting a web site that contains information location tools that refer or link users to one or more 5 online location containing Diebold property,” because “[t]he web page you are hosting clearly 6 infringes Diebold’s copyrights.” (Weekly Decl., Exh. B). But hyperlinks on OPG client 7 IndyMedia’s site, comprised of text and Hypertext Markup Language (HTML) tags such as 8 <“http://d176.whartonab.swarthmore.edu/diebold_internalmemos.pdf”> do not infringe Diebold 9 copyrights. At most, Diebold might argue that IndyMedia is a contributory (secondary) infringer, 10 if its website leads third parties to follow the links to infringing copies of Diebold works. That still 11 leaves OPG – hosting an alleged secondary infringer – yet another degree removed from the 12 underlying infringement. The judge-made doctrine of secondary liability cannot equitably stretch 13 that far: “the concept of contributory infringement is merely a species of the broader problem of 14 identifying the circumstances in which it is just to hold one individual accountable for the actions 15 of another.” Sony, 464 U.S. at 435 (refusing to hold Sony secondarily liable because its Betamax,
16 although capable of being used for infringement, was also “capable of substantial non-infringing 17 use.”). 18 Tertiary and quaternary infringement claims have no place in the copyright schema. See In 19 Re Napster Copyright Litigation, Cases No. 00-1369MHP and 00-4725MHP, Order filed July 9, 20 2001, attached as Exhibit A (“Katz asks this court to adopt what is best described as a ‘tertiary 21 theory’ of [copyright] liability…. The court finds no support for this legal proposition.”) The First 22 Amendment does protect those who talk about what others are doing online (linkers), and it 23 protects those who give speakers the general-purpose tools of online speech (ISPs providing 24 hosting and colocation services). Moreover, the equities weigh strongly against creating liability 25 so attenuated from an underlying infringement. Indeed, were it embraced here it is difficult to see 26 where it would end. It is but a short step from Diebold’s cease-and-desist letter to Hurricane 27 Electric – imputing liability to the host of a host of a linker to alleged infringement – to demands 28 that would compromise the very backbone of the Internet by requiring that all Internet providers 6 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 stop routing requests to and from websites containing allegedly infringing material.
2 C. The DMCA Does Not Support Defendants’ Actions 3 Injunctions against unfounded legal threats exist throughout the law. In the context of 4 patent cases, the Federal Circuit Court of Appeals has confirmed: 5 Infringement notices have been enjoined when the patentee acted in bad faith, for example by making threats without intending to file suit, Betmar Hats, Inc. v. 6 Young America Hats, Inc., 116 F.2d 956, 48 USPQ 266 (2d Cir. 1941); or when the patentee sent notices indiscriminately to all members of the trade, International 7 Industries & Developments, Inc. v. Farbach Chemical Co., 241 F.2d 246, 112 USPQ 349 (6th Cir. 1957); or when the patentee had no good faith belief in the validity of 8 its patent, Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 84 USPQ 105 (2d Cir. 1950). 9 10 Mallinckrodt, Inc. v. Medipart, 976 F.2d 700, 710 (Fed. Cir., 1992). Here Diebold’s infringement 11 claim against Pavlosky and Smith is facially untenable in light of the fair use doctrine and its claim 12 against OPG is plainly outside copyright’s legitimate scope. Diebold’s failure to file any litigation 13 in the eight months since the memos have been available to the public supports the conclusion that 14 it never intended to do so. Both law and experience support a finding of bad faith. 15 Defendants’ argue that no judicial relief is available to Plaintiffs, asserting that such relief
16 would “dramatically alter the rights of the parties as established by” the DMCA. Diebold TRO 17 Opp. At 6:12-13. They claim that the DMCA foreclosed any claim of injunctive relief against a 18 copyright owner to prevent the injury caused by unfounded copyright claims and that it foreclosed 19 use of any legal doctrines other than the DMCA. These claims are plainly wrong, so it is not 20 surprising that Defendants cite neither cases, statutory authority nor legislative history in support of 21 them. Had Congress intended the DMCA notice and counter notice provisions to pre-empt any 22 other relief arising from the issuance of unfounded copyright litigation threats, it certainly could 3 23 have done so. It did not. 24 To the contrary, the relief that Plaintiffs seek here is entirely compatible with the 25 Congressional aims in passing the DMCA. Congress sought to strike a balance between legitimate 26 copyright claims and the rights of ISPs who host other people’s speech. It did so by giving ISPs an
27 3 Indeed, had the DMCA actually eliminated the possibility of injunctive relief or other causes of action arising from claims of copyright infringement online, the screams of protest from the 28 copyrightholders and others would have already been heard. 7 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 optional “safe harbor” to secure complete protection against liability for the conduct of their users 2 in exchange for promptly responding to cease and desist letters and a few other steps. The statute 3 does not require that ISPs use the safe harbor,4 nor does it require speakers or ISPs who believe 4 that a cease-and-desist is unfounded to refrain from seeking immediate relief. Most importantly, 5 Congress plainly did not seek to create a haven for those who might use the process to issue 6 unfounded copyright claims or to limit the remedies for those injured by such abuse. 7 Moreover, Diebold’s argument is entirely inapplicable to OPG. OPG has no standing to 8 send a counter notice to itself on behalf of San Francisco IndyMedia. More importantly, it has no 9 ability to file a counter-notice under the DMCA in response to the threat to cut off its Internet 10 service caused by Diebold’s cease and desist letter to Hurricane Electric. The Hurricane Electric 11 letter was not sent under 512(c), which allows for counter notice by the publisher. It was sent 12 pursuant to U.S.C. §512(a), which has no such counter notice provision. 13 Finally, for Pavlosky and Smith the counter-notification process is not a complete remedy. 14 Pavlosky and Smith were informed by Swarthmore that it was against school policy for them to 15 republish or link to the e-mail archive and so reasonably believed that the counter-notice provisions
16 were not available to them. Smith Decl., ¶¶2, 3. Even if it had been clear to Plaintiffs Pavlosky 17 and Smith from the start that Swarthmore would accept counter-notification pursuant to § 512(g), 18 and even if Swarthmore had responded as quickly as permitted while staying within the safe 19 harbor, Plaintiffs would have been unable to post the e-mail archive to the SCDC website for a 20 minimum of 10 business days, including the period just prior to the November 4, 2003 elections, a 21 critical time for discussion of the security of e-voting machines. Thus the counter-notice provision, 22 while useful in some instances, is insufficiently protective of the speech interests at stake here. 23 /// 24 ///
25 4 The Senate Judiciary Committee Report (105th Cong. 2d, S. Rep. 105-190) p.20, specifically preserves other causes of action: "There have been several cases relevant to service provider 26 liability for copyright infringement. Most have approached the issue from the standpoint of contributory and vicarious liability. Rather than embarking upon a wholesale clarification of these 27 doctrines, the Committee decided to leave current law in its evolving state and, instead, to create a series of 'safe harbors', for certain common activities of service providers. A service provider 28 which qualifies for a safe harbor, receives the benefit of limited liability." 8 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
1 IV. CONCLUSION 2 Based upon the foregoing, Plaintiffs respectfully request that their Preliminary Injunction 3 against Diebold be granted. 4 DATED: November 7, 2003 ELECTRONIC FRONTIER FOUNDATION 5
6 By 7 Cindy A. Cohn, Esq. Wendy Seltzer, Esq. 8 454 Shotwell Street San Francisco, CA 94110 9 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 10
11 12 13 14 15
16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION
EXHIBIT A ~~ ~j... ,-..: . j ~" Jul-II-2001 02:30pm From-COOLEY GODWARD 4159513699 T-691 002/021 F-416
f' LED
JUL .. 9 lO01 , r KANr... \"0. WIi?:::"':I,-.lG ~'t:,"i L;,~. DIS,RI~TCO:JRI UNITED STATES DISTRICT COURa'-;:;~i=ii' :qICT i)F ::PLl!=(JRI~If. NORTHERN DISTRlCT OF CALIFORNIA
'" 8 IN RE NAPSTER, INC. COPYRIGHT No. r. 00-1369 MHP LlTlGA TION No. 00-4725 MHP MEMOR.~NDUM AND ORDER
E-- CII E5 ~ 0 ~ Plaintiff Matthew Katz, a music producer, alleges copyright infiingement U iii , trademark 14 infringement, unfair competition and interference with economic relations by Napster C ~ Inc. E2 :: 15 ("Napster ), and individual defendantS John W. Fanning, Sean Fanning, Sean Parker r-. , Hank Barry) Q ~ 16 Hummer Winblad, Bob Bozeman, Yosi Amram, Joe Kraus, Fred Durst, Roger McGuinn, Jonathan 17 H. Greene and Does 1 through 10. Now before the coun . ~ t are the motions of defendants Hank Barry, 1;1;) Q :z: 18 Yosi Amram, Shawn Fanning, Hummer Winblad, Bob Bozeman and Fred Durst to dismiss the 19 complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and John W. ;J ~ 20 Fanning s motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
Fred Durst s motion for sanctions is also before the coun. Having considered the panies' arguments 22 and for the reasons set fonh below, the court enters the following memorandum and order.
24 aACKGROUND This action is one of several copyright infringement actions against Napsrer , an Internet service that facilitates the downloading of MP3 music files 26 , currently pending before this coun. 27 In re Napster C 00- 1369 MHP. Because the coun has discussed the Napster service at length in 28 prior orders in this proceeding, and because the parties are familiar with the system , the coun will " " " " " "
. J ul-11-2001 02:30pm From-COOLEY GODWARD 4159513699 T-691 003/021 F-416
limit this background section to information relevant to defendants' motions. For the purposes of these motions, the coun draws on the facrual allegations of the complaint. Matthew Katz describes himself as a " producer and owner of music" having created several
musical bands including 'jefferson airplane;' "Moby Grape s a Beautiful Day, Indian
Puddin' and Pitpe Tripsichord" and "Fraternity of Man." Complaint'
KatZ contends that Hank Barry is the CEO ofNapster, Shawn Fanning is the co-founder of
napster.com and Jolm W. Fanning is t?e registrant of the domain name "napster.com." Complaint
,,6- 7 , 9. According to the complaint, Hummer Winblad, a company operating within the state of California) is a "pan-owner of (Napster) by virtUe of a $15 Million ventUre capital investment. Complaint' 10. Katz alleges that Yosi Amram- is a part-owner ofNapsrer " by virtue of a $2 Million private investment" and Bob Bozeman is a pan-owner " by vinue of a $2 Million private invesnnent by his company svangels.com.,,1 Complaint ~~ 11- 12, Fred Durst is a member of the musical band
Limp Bizkit." Complaint' 14. On July 24, 2000, Katz filed this action in the United States District Coun for the Central District of California alleging copyright infringement, trademark infringement, unfair competition
and interference with economic relations, See Katz v. Napster, Inc. et at COO...o7966 CAS.
December 20, 2000, the action was mmsfeITed to this court, reassigned to Case No. C 00-4725 MHP
and coordinated with the Multi-District Litigation pending before this court in III re Napsrer. ffif.:., 00- 1369 MHP.
21 LEGAL STANDARD
22 1. Rule 12(b)( In considering the sufficiency of a complaint under Rule 12(b)( 6), the coun will not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in
suppon of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Federal Rules do not require plaimifftO plead in detail the facts upon which he bases his claim; he must merely set forth a "shon and plain statement of the claim" that gives the defendant fair notice of its natUre and grounds. ~lil. at 47 (citing Fed. R. Civ, P. 8(a)(2)). Couns , . );
J!JI-I1-2001 02:31pm From-COOLEY GODWARD 4159513699 T-691 004/021 F-416
in the Ninth Circuit have often stated that unwamnted inferences and conclusory allegations of law
even when pled as facts , are insufficient (0 defeat a motion to dismiss- See In re Verifone Sec.
L.iIi& 11 f.3d 865 , 868 (9th Cir. 1993).
II. Rule )2(c) Any parry may move for judgment on the pleadings after the pleadings are closed but within such time as not to delay the triaL Fed. R. Civ. P. 12(c). A motion for judgment on the pleadings is
properly granted when, taking all the allegations in the pleading as true, the moving party is entitled
tojudgmem as a matter of law. See Nelson v. City ofINine, 143 F.3d 1196, 1200 (9th Cir. 1998).
PJSCUSSION
Copyright Infringement
In his Second Claim for Relief, Katz alleges contributory copyright infringement against aU defendants. Although the Copyright Act, 17 V. C. ~~ lOt el seq. does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain
circums~ces , vicarious or contributory liability will be imposed. See Fonovisa. fuc, v- Cherry
17 Auction. Inc. 76 F.3d 259, 261 (9th Cir. 1996).
ComribufOry Infiingement
Katz asks this court to adopt what is best described as a "tertiary theory" of liability for 20 contributory infiingemem. He argues that defendants are liable for contributOry infiingement on the basis of their relationship to Napster. Katz does not allege that Napster is a direct infringer , but would hold Napster liable for contrihutory infringement on the basis of the service Napsrer provides to its users, Under this fonnulation, Napster users are the direct infringers, Napster is the secondary infringer and the individual defendantS are ternary infringers. The court finds no suppon for this . legal proposition. Rather, courtS have consistently held that liability for connibutol)' infringement
requires substantial participation in a specific act of direct infringement. See e. g. Cable/Home Communkation Corp. v . NetWork Prod_, In!;.. 902 F.2d 829, 845 (11 th Cir. 1990) ("ContribUtOry infiingemenr necessarily must follow a finding or direct or primary infringement. .G~rshwjn . J ul-II-2001 02:31pm From-COOLEY GODWARD 4159513699 T-691 005/021 F-416
pubI' g Corp. v- Columbia Artists Mg111t., Inc. 2d 1159 , 443 F. , 1162- 63 (2nd Cir. 1971); see alsQ
Nimmer On Copyright 9 12, 04(A)(2J(aJ at 12-73 ("in order to be deemed a contributory infringer the authorization or assistance must bear some direct relationship to the infringing acts , and the
person rendering such assistance or giving such authorization must be acting in COlleen with the infringer
Even if the " tertiary theory" were a sound basis for the assenion.of claims of contributory infringement against individuals other than the direct infringers, Katz s complaint against the individual defendants must be dismissed.
(I) Hank Ba~
Katz alleges that Barry is liable for contributOry infringement because he "substantially contributc(s) to the international unauthorized copying and distribu~ion of musical sound recordings by investing substantial sums of money, supporting, guiding, encouraging, and promoting Defendant 13 NAPSTER, INC. for their own futUre benefit, " Complaint ~ 51. The complaint offers no facrual 14 suppon for this conclusory assertion.:.! Moreover, Katz does not allege that Barry "knowingly contributes to the infringing conduct of another, Katz therefore has failed to State a claim for connibu~ory infiingemem against Bany.
(2) Bob Bozeman
Katz alleges that Bozeman is liable for contributory infiingement because he "substantially contribute(s) to the international unauthorized copying and distribution of musical sound recordings by investing substantial sums of money) supponing, guiding, encouraging, and promoting Defendant NAPSTER, INC . for (his) own futUre benefit." Complaint ~ 51. A~cording to KatZ, Bozeman is a 22 pan-owner in N apster. by vinue of a tWo million dollar in vestment in Napster by Bozeman company. Complaint ~ 11.
24 Katz has not identified any specific actions by Bozeman. Rather, he alleges in purely conclusory fashion that Bozeman 25 s finn "subsumtially connibure(sr to unauthorized copying by reasOn of its investment in Napster. The coun detectS no factual basis to conclude that Bozeman 27 substantially contributed to a specific act of infringement. (3) Hummer Winblad . Jyl-11-2001 02:31pm From-COOLEY GODWARD 4159513699 T-691 006/021 F-416
Katz alleges that Hummer Winblad "substantially conrribute(s) to the international unauthorized copying and distribution of musical sound recordings by investing substantial sums of money, supporting, guiding. encouraging, and promoting Defendant NAPSTER, INC. for (itS) own futUre benefit, " Complaint ~ 51. Once again, the complaint offers conclusory aIlegations in place of
specific factUal allegations.J Katz does nor alll:ge that Hummer Winblad substantially contributed to
a specific aCt of direct infringement.
(4) Y05i Amrarn
Katz alleges that Yosi Arnram "substantially contributer~) to the international unauthorized copying and distribution of musical sound recordings by investing substantial sums of money, supporting, guiding. encouraging, and promoting Defendant NAPSTER, INC. for (his) own futUre benefit." Complaint 1 51. KatZ offers no factUal suppon for this conclusory aIlegation. According to an earlier panion of the complaint, Amram is a pan-owner ofNapster " by vinue of a $2 Million private investment." Complaint ~ 11. This alJegation, standing alone. is insufficient to suppon a contributory infringement cause of action. (5) Shawn Fanning and John W. Fanning
The Second Claim for relief contains no specific factUal allegations relating to Shawn Fanning or John W. Fanning. Katz alleges that Shawn Fapning is a co- founder ofnapster.com. Complaint ~ 7, Katz alleges that Jolm W. Fanning is the registrant of the domain name
napster,com." Complaint' 6. These allegations provide an insufficient basis on which to conclude fhat both individuals contributed) in a substantial way, to a specific act of direct infringement (6) Ered Durst Katz alleges that Durst " substantially comribute(s.J to the international unauthorized copying and distribution of musical sound recordings by encouraging, speaking positively~ and by participating in free conceI1S promoting Defendant NAPSTER, INC:04 Complaint' 50. Katz does not allege that Durst participated in any way in the development or administration of the Napster system. The allegations that Durst " encouraged" or " spoke positively" about Napster, or that he participated" in some fashion in free concern " promoting" Napster) are vague and unspecific. Katz fails to allege that Durst knowingly and substantially participated in a specific act of direct . . , "
. Jvl-11-2001 02:32pm From-COOLEY GODWARD 4159513699 T-691 007/021 F-416
infringement.
In light of the COUI1 ' S conclusion regarding the proposed " tertiary theory" of liability and the deficiencies of Katz s complaint, the court will dismiss with prejudice the contributory intiingement
causes of action against the individual defendants.
Vicarious Infringement
Katz alleges vicarious copyright infringement by all defendants in his Third Claim for Relief. To sustain a cause of action for vicarious copyright infringement, a plaintiff must prove that the
vicarious infringer has (1) fhe right and ability to supervise Or control the infringing activity, and (2)
a direct financial interest in the infringing activities. See Fonovisa, 76FJd at 262- 63; Gershwin 10 443 F.2d at 1162. Once again, the co un finds no suPPOrt for Katz s assertion that an individual can 11 be held vicariously liable for acts of someone other than the direct infringer.
(1) Hank: Barry1 Hummer Winblad, Bob Bozeman anq Yogi Amram Katz alleges that Barry, Hummer Winblad, Bozeman and Amram are liable for vicarious
infringement because they "substantially contribute to the international unauthorized copying and distribution of musical sound recordings by investing substantial sums of money, supporting,
guiding, encouraging. and promoting Defendant NAPSTER, INC. for their own futUre benefit.
17 Complaint 'If 68. In addition. .Katz alleges that Napster has received over $17 million in investment 18 capital from Barry. Hummer Winblad, Bozeman and Amram all of whom intend to profit from the 19 widespread copyright infringement described (in the complaint.)" Complaint ~ 70. Katz adds that 20 Hummer Winblad. as owner of website similar to napster:com, also stands to benefit if Napsrer compiles a list of itS users. Complaint~ 71. Katz does nor aUege that any of these defendantS have the right or ability to supervise or
confI'ol we infringing activity. Although the comp!aint alleges that these defendants "intend to 24 profit" from use of the Napster system, Katz does not assert that they have a direct financial interest in the infringing activity.
(2) Sl1awn Fannjng and John W. Fanning In pleading the vicarious infringement cause of action, the complaint contains no facrual allegations relating to Shawn Fanning or John W. Fanning. It appears from the entirety of the , ,
, ~ul-11-2001 . 02:32pm From-COOLEY GODWARD 4159513699 T-69 I 008/021 F-416
complaint that Katz would hold Shawn Fanning liable for vicarious infringement as one of the .' Co-
founders" ofnapster. com. See Complaint' 7. Katz would hold John W. Fanning liable as the registrant of the domain name " napster.com. See Complaint' 6, The complaint does not aJIege Ihar either individual has the right or ability to control the infringement, or a direct financial interest in the infringement. As pled, the cause of action for vicarious infringement cannot stand against
Shawn Fanning and John W. Fanning. (3) Fred Durst Katz alleges the Durst "substantially contribute(s) to the international unauthorized copying and distribution ofmusicaJ sound recordings by encouraging, speaking positively, and by
participating in free concens promOting Defendant NAPSTER, INC.n Complaint, 10 67. Sening aside Katz s concIusoL)' assertion, Katz does not allege a factUal basis on which to conclude that Durst has the right or the ability to supervise or COntrol the mfringing activity. Absent such an al1egation. Katz cannot maintain a vicarious infringement cause of action against Durst.
The individual defendants are entitled to the dismissal of Katz s vi~arious infringement cause of action.
17 II. C~1ifomia CiviL..CQQe Section 980(a)(2) KatZ alleges in his Fourth Claim for Relief that all defendantS have violated Katz s exclusive ownership interests in certain sound recordings in violation ofCalifomia Civil Code section 980(a)(2). Section 980(a)(2) provides in part that the author of an original work of authorship consisting of a sound recording initially fixed prior to February 15 , 1972) has an exclusive . 22 ownership interest therein until February 15 , 2047. S~e Cal. Civ. Code 9 980(a)(2). .To recover for infringement under this section, a plaintiff must show three elements: (I) ownership by plaintiff of a 24 protectible property interest; (2) unauthorized copying of the material by defendant; and (3) damage
25 res\1lting from the copying, See Golding v. R.K.O. Pictures. Jnc. 35 Cal. 2d 690, 694 (1950). Katz does not allege a single fact relating to the individual defendants in suppon of this
27 claim. Se~ Complaint ~ 78. He does not allege that any of me individual defendantS engaged in 28 unauthorized copying of the mateIial. Moreover, Katz does not allege with any fa~tUal detail that he , Jul-iHOOl 02:32pm From-COOLEY GODWARD 4159513699 T-691 009/021 F-416
owns a protectible property interest or that he was damaged as a result of the copying. Katz Fourth Claim for Relief must be dismissed.
III. Trademark !nfringemenr
In his Fifth and Sixth Claims for Relief, Katz aHeges that all defenaants violated his
trademarks in the names " s A Beautiful Day" and " Moby Grape " respectively. A plaintiff may establish a prima facie case ofrrademark infringement by showing rightful ownership of the marks in suit and a likelihood of confusion or mistake amongst the public from defendantS ' use of the
mark See Sony Computers Entm ' 1: America. lnc Gamemaslers 87 F. S"Pp. 2d 976, 984 (N. Cat 1999). (1) Hank Barry. Hummer Winblad, Bob Bozeman and Yosi Amram
Katz alleges that moving defendants Barry, Hummer Winblad, Bozeman and Amram are Hable for trademark infringement because they "substantially contribute to tbe international
unauthorized use of plaintiffs mark by investing substantial sums of money, suppoI1ing, guiding, encouraging and promoting Defendant NAPSTER, INC. for their own futUre benefit" Complaint'~ 87, 95. This generalized, conclusory allegation is insufficient to sustain causes of action for trademark infiingemenr. Kaubas failed to allege that any of these defendantS actUally used a mark owned by plaintiff.
(2) Shawn Fanning iind John W. F&nning The trademark infringement claims contain no allegations relating to Shawn Fanning or John
W. Fanning, Katz does not allege that either Shawn Fanning or Jolin W. Fanning used a mark owned by plajntiff, Or that such use created a likelihood of confusion or mistake,
(3) Fred Durst The trademark infringement claims are entirely devoid of factual allegations relating to
defendanT DUrsL Katz does not allege that that Durst actUally used the "It' s A Beautiful Day" or Moby Grape" marks, or that Durst had any direct involvement in the alleged infringement ofK.au trademark rights.
Defendants are entitled to dismissal of Katz s trademark infiingemem causes of action. J~I-II-2001 02:33pm From-COOLEY GODWARD 4159513699 T-691 OI0/021 F-416
IV. Unfair Competition In his Seventh Claim for Relief , KatZ alleges that all defendants engaged in unfair competition in violation of California Business and Professions Code section 17200. Under California s Unfair Competition Act, unfair competition means and includes any unlawful. unfair or
fraudulent business act or practice. S~e Cat Bus. & Prof. Code g 17200; Klein v. Earth Elements 59 Cat App. 4th 965 6 ~, , 968 (1997); see also People ex r~1. Renne v. Servantes, 86 Cal. App, 4th 1O8!, 1087 (2001) (defining "Wllawful business practice " as " one that is forbidden by law, whether civil. criminal, federal, state, or municipal, statutory. regulatory, or court..made Katz alleges that the "acts and conduct" of defendants described in the complaint constimte(J an appropriation and invasion of property rights of pI aim iff, and constitute unfair competition" under section 17200. Complaint' 100. Katz seeks to recOVer naIl proceeds and other compensation received or ro be received by Napster arising from its users ' direct infringements of Plaintiffs music:' Complaint ~ 101. Katz s unfair competition cause of action does not contain any specific factUal allegations relating to the individual defendants. Although the nature and scope of the unfair competition claim is ambiguous . it appears from the allegations of the complaint., as well as Katz s representations at the hearing on this matter , that the allegedly unlawful business practice at the heart of the -unfair competition claim is copyright infringement. As copyright infringement lies at the hean of the unfair competition claim, the unfair competition action is preempted by federal copyright law. Kodadek v. MTV NetWorIcs. Inc. 152 F.3d 1209, 1213 (9th Cir. 1998) (holding section 17200 unfair competition claim " based solely on rights equivalent to those protected by the federal copyright laws " and is preempted); &.rnz Colp. v. Apple CompUter, Inc" 734 F. Supp, 1542, 1551 (N,D. Cal. 1990) (holding unfair competition claim preempted where essence of unfair competition claim is defendant' s alleged unauthorized use of plaintiffs copyrighted work). Katz s Seventh Claim for Relief must be dismissed.
Interference With Economic Relarions In his Eighth Cl~im for Relief, Katz aIJeges that defendants interfered with his economic Jul-11-2001 02:33pm From-COOLEY GODWARD 4159513699 T-69 I P. 011/021 F-416
relationship with retailers and distributors , inclucting Valley Media, by distributing copies of Katz' music without permission and with the intent to hann him financially. Complaint ~ 108. AcCording to the complaint, Valley Media ended its relationship with plaintiff as a result of defendant'
conduct. Complaint ~I 109. To state a cause of action for the ton of interference with prospecti ve economic advantage plaintiff must show (1) an economic relationship betWeen the plaintiff and some third party, with the probability of futUre economic benefit to the plaimiff; (2) the defendant' s knowledge of the
relationship; (3) intentional acts on the part pf the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaimiffproximately caused by 10 the acts of the defendant. See Pacific Gas & Electric Co. v . Bear Stearns & Co., 50 Cal. 3d 1118 1126 & n.2. (1990), Once again, Katz relies on purely conclusory allegations and proffers no specific facts on which to conclude that any of the individual defendants interfered with KatZ s economic relationships. This cause of action must be dismissed because Katz has not alleged that defendants knew of the relationships betWeen Katz and The retailers and distributors, intended to interfere with such relationships or actually did so.
VI. Motion for Sanctions
Durst asks the COUrt TO award sanctions in the amount of$45 569. , the amount of Durst fees and costs, pursuant to Rule 11 of the Federal Rules of Civil Procedure. Rule 11 requires the imposition of sanctions when a cause is frivolous, legally unreasonable or without factUal
foundation, or when it is brought for an improper purpose. See Conn v. BoDorquez. 967 F.2d 1418 (9th Cir. 1992). Durst contends that sanctions are appropriate because Kat2' s allegations contain no factual support and because Durst was named in the suit solely for publicity purposes. Katz s comments at the hearing On this mater suggest to the coun that he might have had an
26 improper motive, such as harassment, in bringing suit against Durst. See Fed. R. Civ. P. 1 (b)(1) 27 (defining .'improper purpose " to include harassment); se~ also Fed. R. Civ. P. 11(c) (authorizing court to impose sanctions upon panies who have violated Rule Il(b)), The record, however, is q(
, Jld-I1-2001 02:33pm From-COOLEY GODWARD 4159513699 T-691 012/021 F-416
jnsufficient to determine that such an improper purpose actually motivated Katz. The court is unwilling to gram Durst s motion for sanctions on this record. If Durst can establish that Katz brought the suit for the purpose ofharassmem, the coun will reconsider its ruling.
CONCLUSION
For the reasons stated above, the court hereby GRANTS defendants ' motions to dismiss DISMISSES WITH PREJUDICE Katz s complaint and DENIES defendant Durst s motion for sanctions. IT IS SO ORDERED.
Da~ed: ADo
~TEChief Judge United States District Court Nonhem District of California . .
J41-11-2001 02:34pm From-COOLEY GODWARD 4159513699 T-69 I PO13/021 F-416
ENDNOTES
I. The complaint identifies Bozeman s company as svangels.com. Complaint ~ 11. Bozeman representS that svangels.com is the web site of his venture capital firm, Angel Investors.
2. In opposition to Bany s motion to dismiss, Katz contends that BaITY contributes to the infringement by "toutring) Napster as a legitimate service" and argues that Barry, as an active member of the Napster management team, has "helped guide the groWth" olme infringing activity. 6 Katz s Opp. at 5 8. Even ifrhese conclusory allegations appeared in the complaint, they would be insufficient ro satisfy Katz s pleading obligation, On April 30, 2001, Katz submitted an additional declaration, accompanied by various exhibits. purporting to support his opposition ro me mOtions to dismiss. Because these materials are confidential within the meaning of the protective order entered in this case, and because Katz submitted the documentS after the close of briefing in violation of Civil Local Rule 7- 3(e), the COUI1 : by separate order directs that the documents be lodged under seal rather than filed, It appears to the court that the only document ostensibly relating to defendant Bany is a an e- mail addressed to Barry suggesting a possible relaTionship with a third party that would enable 11 Napster to work with the major record labels. Nothing in this document would support an assenion 12 that BaITY substantially ccmributes to the alleged acts of direct infringement.
13 3. Included in Katz s April 30, 2001 submission are e-mails to Jolm Hummer regarding potential business relationships betWeen third 14 panies and Napster and references to Napster s funding. These documentS do not provide a factual basis On which to conclude that Hummer Winblad occupies a 15 position of control vis-a-vis Napster or that it substantially contributes to the alleged acts of infringement in some meaningful way. 17 4, In opposition to the motion, Katz adds that Durst has "publicly stated that the activity by Napster has increased (his) sales and (his) public celebrity." Katz Opp, at 3. Katz contends that Durst benefitted financially trom the " has 18 pirating activity" ofNapster. hh Katz offers similar allegations in his declaration submineQ on April 30, 2000. Even ifmese allegations were included in the 19 complaint., none would rise to the level of substantial participation required to sustain a claim for 20 contributOryKatz infringement. s reliance on Cable/Home Comm. Corp. v. Nerwo* Prod_- 902 F.2d 829 (lIth Cir. 21 1990), is unwaITaI1ted. In CablelHome. the coun required evidence mat the promoter engaged in substantial participation in the alleged intnngement, The coun found the promoter liable for 22 conuibutory infringemerlt upon a showing that the promoter provided funds and equipment to 23 facilifate the duplication. See CablelHome. 902 F.2d at 846. 5, To state a claim for intentional interference with contractUal relations, plaintiffs mUST allege (I) valid contract betWeen plaintiff and a third parry; (2) defendant s knowledge of this contract; (3) defendant s intentional acts designed to induce a breach or disruption of the contractUal relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. See Pacific Gas & Elec., 50 Cat 3d at 1126. The ton of intentional interference with contractual protects the same interest in stable economic relationships as does the relations tOrt of interference with coQtract, though interference with prospective advantage does nOt require proof of a legally binding contraCt. See .i4" - - Jul-11-2001 02:34pm From-COOLEY GODWARD 4159513699 T-691 014/021 F-416
Uni~ed S~a~es District Court awb for the Northern Di5~rict of Ca1ifornia July 10 , 2001
~ ~ CERTIFICATE OF SERVICE *
Case Number:M: 00- cv-01369 Naps~er, Inc.
Napster , Inc.
, the unde~signed , hereby cer~ify ~hat I am an employee in the Office che Clerk , U. s. District Court , Nor~hern Dis~rict of California. Tha~ on July 10 , 2001 , I SERVED a ~rue and correct copy ~he attached, by placing said copy(ies) in a pos~age paid(ies) envelope addressed to the person (5) hereinafter listed , by depositing said envelope in the u. s. Mail , or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk' s office.
Robert B. Silver, Es~, Boies & Schiller LLP AB/MHP 80 Business Park Dr. Armonk, NY 10504 Laurence F. Pulgram, Esq. Fenwick & West LLP 275 Battery Street 15th Floor San F+ancisco , CA 94111 Russell J. Frackman, Esg. Mitchell Si1berberg & Knupp 11377 W Olympic Blvd Los Angeles, CA 90064 S~anley Pierre-Louis, Esq. 1330 connecticut Avenue , N. Suite 300 Washington, DC 20036 Barry I. Slotnick, Esq. Richards & 0 Neil, LLP 885 Third Avenue New York , NY 10022-4873 :. Jul-11-2001 02:34pm From-COOLEY GODWARD 4159513699 T-691 015/021 F-416 Mat:cnew u. Opper. im 1330 Connecticut Avenue, Esg. Suite 300 , N. Washington, DC 20036 Howard E. King, Esg. King, Purcich , Holmes , Paterno 1900 Avenue of the Scars & Berliner . LLP Twenty-Fifth Floor Los Angeles , CA 90067-4506
Dean A. Morehous Jr , Esg. Thelen Reid & Priest LLP 101 Second Se See 1800 San Francisco , CA 94105 - 3601 Reed R. Kathrein, Milberg Weiss BershadEsq. Hynes 100 Pine Street & Le:r~ch LLP Ste 2600 San Francisco , CA 941~1 Matthew Katz 29903 Harvester Road Malib~ , CA 90265 Charles E. Tillage Cotchect Pitre & Simon, Esg. 840 Malcolm Rd Ste 200 Burlingame , CA 94010
Steven M, Cohen , Esg. Kronish Lieb Weiner & Hellman LLP 1114 Avenue of the Americas New York, NY 10036- 7798 Edwin F. McPherson, Esq. McPherson & Kalmansohn ~801 Century Park East 24th Floor Los Angeles , CA 90067 Christopher J. Hunt Bartko Zankel Tarrant, Esq.& Miller 900 Front Se Ste 300 San Francisco , CA 94111 Jeffrey G . Knowles , Esq. Coblept z Patch Duffy & Bass, LLP 222 Kearny Bt. 7th FIr. San Francisco , CA 94108 Aidan Synnott , Esq. Paul Weiss Rifkind Wharton & Garrison 1285 Avenue of the Americas New York , NY 10019 Robert: L, Eisenbach I I I, Esq. Jul-11-2001 02:35pm From-COOLEY GODWARD 4159513699 T-691 016/021 F-416 One Maritime Pla:z. 20th FIr San Francisco, CA 94111- 3580 Annette L. Hurst , Esq. Howard Rice Nemerovski Canady Falk & Rabin Three Embarcadero Center 7th FIr San Francisco . CA 94111 Kevin T. Baine . Esq. Williams & Connolly 725 12th Street N. Washington . DC 02005
David Henry Dolkas , Esq. Gray Cary Ware & Freidenrich 1755 Embarcadero Road Palo Alto , CA 94303-3340 Christopher Tayback, Esq- Quinn Emanuel Urquhart Oliver 865 S Figueroa St & Hedges LLP lOch FIr Los Angeles , CA' 900~ 7- 32~1
king, Clerk , . \\\\ \ =-' ~' "~
. Jul-11-2001 02:35pm From-COOLEY GODWARD 4159513699 T-691 017/021 F-416 ILED
JUt.. 2001 ";ICi-:ARLJ~,' ~" LEiil\ I' ,. 1';'" "'EK"~ -- : r\f~ ICU:.JRT NOiiiH RN UNITED STATES DISTRICT COURT - -I.l1lcr Of- CALJFCRNIA, NORTHERN DISTRICT OF CALIFORNIA
IN RE NAPSTER, INC., COPYRIGHT MDL No. C 00- 1369 LITIGATION ORDER
PlaintiffManhew Katz in Katz v. Napsrer. Inc. eT. aI, C 00-4725 MHP, has submitted to the coun an ex pane application for an order pennitting the Declaration of Matthew Katz dated April 30 2001 , and six e)(ffibits to be filed under seaL Katz argues that the documents suppOrt his oppositJon
to defendanr~ ' motions to dismiss the complaint, which are cuITently under submission. After reviewing the documents, the court agrees that they are confidential within the meaning of the protective order entered in this action. Pursuant to Civil Local Rule 7- 3(e), however, no additional memoranda, paper or 1eners shall be fUed once a reply is filed without prior coun
approval. See Civ. Local R. 7-3(e), Katz represents that he obtained the material after the April 10 2001 , hearing on the motion by reviewing the documentS produced by defendant Hummer Winblad in the offices of Mitchell, Silberberg & KnlJPP, plaintiffs ' liaison counsel in In re Napster MDL No. 00.1369. Katz offers no explanation as to why he did not review or obtain copies of the material before the coun took the matter under submission on April 1 0 , 2001. Under these circumstances Katz has not made an adequate showing as to why the documents should be filed at this stage of me proceedings. , .
Jyl-II-2001 02:35pm From-COOLEY GODWARD 4159513699 T-691 018/021 F-416
Accordingly, the cout1 hereby ORDERS that the DeclaraTion of Matthew Katz dated April 2001 , and the six exhibitS accompanying the declaration be LODGED UNDER SEAL. IT IS SO ORDERED.
Dated: rr 2A'1 rr7 Chief Judge United States District Court Northern Disnict of California . ,, . . . *
. Jul-iHOOI 02:35pm From-COOLEY GODWARD 4159513699 T-691 019/021 F-416
ani ted Sta ces District Court awb f or the Northern Discrict of California July 10 , 2001
. . CERTIFICATE OF SERVICE
Case Number:M: 00 - cv- Ol369
Napster , Inc.
Napster , Inc.
I, the undersigned, hereby certify that I am an employee in the Office the Clerk, u. S. District Court: , Northern District of California. That on July 10 , 2001, I SERVED a true and correct copy the attached, by placing said copy(ies) in a postage paid(ie5) envelope . addressed to the person (5) hereinqfter listed, by depoSiting said envelope in the U. S. Mail , or by placing said copy(ies) into an inter- delivery receptacle located in the Clerk' 5 office. office
Robert B. Silver, Esq, Boies & Schiller LLP AB IMH? 80 Business Park Dr. Armonk, NY 10504 Laurence F. Pulgram, Esq. Fenwick & West LLP 275 Battery Street 15 th Floor San Francisco, CA 9~111 Russell J. Frackman, Esq. Mitchell Silberberg & Knupp 11377 W Olympic Blvd Los Angeles , CA 90064
Stanley Pierre-Louis , Esq. 1330 Connecticut Avenue, N. SUite 300 Washington, DC 20036 Barry I. Slotnick, Esq. Richards & 0' Neil, LLP 885 Third Avenue New York, NY 10022-4873 , . . ~
Jul-II-2001 02:35pm From-COOLEY GODWARD 4159513699 T-691 020/021 F-416 Matthe\Y J. Oppeni~,-, .itn, Esq. l330 Connecticut Avenue, N. Sui te 300 Washington, DC 20036 Howard E. King, Esq. King Purtich, Holmes, Paterno & Berliner 1900 Avenue of the Stars , LLP Twenty-Fifth Floor Los Angeles , CA 90067-4506
Dean A - Morehous Jr Esq. Thelen Reid & Priest LLP 101 Second 8t Ste 1800 San Francisco , CA 94105- 3601 Reed R. Kathrein , Esq. Mi~berg Weiss Bershad Hynes & Lerach LLP 100 Pine Street Ste 2600 San Francisco, CA 94111 Macthew Katz 29903 Harvester Road Malibu, CA 90265
Charles E. Tillage , Esq. Cotchett Pitre & Simon 840 Malcolm Rd Ste 200 Burlingame, CA 940l0 Steven M. Cohen . Eag. Kronish Lieb Weiner & Hellman LLP 1114 Avenue of the Americas New York, NY 10036-7798 Edwin F. McPherson, Esq. McPherson & Kalmansohn 1801 Century Park East 24th Floor Los Angeles, CA 90067
Christopher J. Hunt , Rag. Bartko Zankel Tarrant & Miller 900 Front St Ste 300 San Francisco , CA 94111 Jeffrey G, Knowles, Esq, Coblentz Patch Duffy & Bass, LLP 222 Kearny 9t. 7th FIr. San Francisco , CA 94108 Aidan Synnott, Esq. Paul Weiss Rifkind Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019 RQber~ L. Eisenbach III, Esq. ', ., - Jul-II-2001 From-COOLEY GODWARD 02:36pm 4159513699 T-69 1 021/021 F-416 One Mar~t:ime Pla2 20th FIr San Francisco , CA 94111- 3580 Annette L. Hurst , Esq. Howard Rice Nemerovski Canady Falk & Rabin Three Embarcadero Cen~er 7th FIr San Francisco, CA 94111 Kevin T. Baine . Esq. Williams & Connolly 725 12th Street N. W. Washington, DC 02005
David Henry Dolkas , Esq. Gray Cary WaTe & Freidenrich 1755 EffiParcadero Road Palo Alto , CA 94303- 3340 ChriStopher Tayback, Esq. Q~inn Emanuel U~quhar~ Olive~ 865 S Figueroa St & Hedges LLP 10t:h FIr Los Angeles, CA 90017- 3211